Citation Nr: 0416540
Decision Date: 06/24/04 Archive Date: 06/30/04
DOCKET NO. 02-08 709 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for intervertebral disc
syndrome of the lumbar spine with degenerative joint disease,
claimed as a back injury secondary to a spinal tap.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The appellant and M.E.
ATTORNEY FOR THE BOARD
Jessica J. Wills, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a May 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina, which denied the benefit sought on
appeal. The veteran, who had active service from October
1974 to October 1976, appealed that decision to BVA, and the
case was referred to the Board for appellate review.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, D.C. VA will notify the veteran
if further action is required on his part.
REMAND
As a preliminary matter, the Board is required to address the
Veterans Claims Assistance Act of 2000 (VCAA), which became
law in November 2000. The VCAA provides, among other things,
that the VA shall make reasonable efforts to notify a
claimant of the relevant evidence necessary to substantiate a
claim for benefits under laws administered by the VA. The
VCAA also requires the VA to assist a claimant in obtaining
that evidence. Such assistance includes providing the
claimant a medical examination or obtaining a medical opinion
when such an examination or opinion is necessary to make a
decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2003).
In this case, the Board notes that the veteran has not been
afforded a VA examination in connection with his claim for
service connection for intervertebral disc syndrome of the
lumbar spine with degenerative joint disease. Service
medical records show that he was provided a spinal tap in May
1976 after he had complained of blurred vision. Following
his separation from service, the veteran injured his back
while working at the Sumter County motor pool, and the
evidence of record shows that he first sought treatment with
complaints of lower back pain in December 1980. The veteran
has argued that the spinal tap performed on him during his
period of service caused his current back disorder, which was
then aggravated by this subsequent injury. However, the
evidence of record does not contain an opinion based on a
review of the claims file that specifically addresses whether
there is a nexus between the veteran's spinal tap in service
and his current symptomatology. Therefore, the Board is of
the opinion that a VA examination and medical opinion are
necessary for the purpose of determining the nature and
etiology of the veteran's intervertebral disc syndrome.
In addition, it appears that the veteran's complete private
medical records may not be associated with the claims file.
In this regard, the Board notes that the appellant testified
at a December 2003 hearing before the Board that he had been
treated at the Richland Memorial Family Practice in 1998 or
1999. However, these records are not associated with claims
file. Nor does it appear that an attempt to obtain them was
made. Such records may prove to be relevant and probative.
Therefore, the RO should attempt to obtain and associate with
the claims file any and all treatment records pertaining to
the veteran's intervertebral disc syndrome with degenerative
joint disease.
Therefore, in order to give the appellant every consideration
with respect to the present appeal and to ensure due process,
it is the Board's opinion that further development of the
case is necessary. Accordingly, this case is REMANDED for
the following action:
1. The RO should request that the
appellant provide the names and
addresses of any and all health care
providers who have provided treatment
for his lumbar spine disorders.
After acquiring this information and
obtaining any necessary
authorization, the RO should obtain
and associate these records with the
claims file. A specific request
should be made for treatment records
from the Richland Memorial Family
Practice dated from January 1998 to
December 1999.
2. The veteran should be afforded a
VA examination to determine the
nature and etiology of his current
intervertebral disc syndrome of the
lumbar spine with degenerative joint
disease. Any and all studies, tests,
and evaluations deemed necessary by
the examiner should be performed.
The examiner is requested to review
all pertinent records associated with
the claims file and offer an opinion
as to whether it is at least as
likely as not that the veteran's
intervertebral disc syndrome of the
lumbar spine with degenerative joint
disease is etiologically related to
his military service and particularly
his spinal tap documented in his
service medical records. A clear
rationale for all opinions would be
helpful and a discussion of the facts
and medical principles involved would
be of considerable assistance to the
Board. Since it is important "that
each disability be viewed in relation
to its history [,]" 38 C.F.R. § 4.1
(2003), copies of all pertinent
records in the appellant's claims
file, or in the alternative, the
claims file, must be made available
to the examiner for review.
3. In addition to the development
requested above, the claims file
should be reviewed to ensure that all
VCAA notice obligations have been
satisfied in accordance with
38 U.S.C.A. §§ 5102, 5103, and 5103A,
(West 2002), and any applicable legal
precedent.
When the development requested has been completed, the case
should be reviewed by the RO on the basis of additional
evidence. If the benefit sought is not granted, the veteran
and his representative should be furnished a Supplemental
Statement of the Case and be afforded a reasonable
opportunity to respond before the record is returned to the
Board for further review.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The appellant has the right to submit
additional evidence and/or argument on the matter or matters
the Board has remanded to the regional office. Kutscherousky
v. West, 12 Vet. App. 369 (1999). No action is required of
the veteran until he is notified.
_________________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).